President Trump says he is considering declaring an emergency at the border to unlock military funds to build a fence (a.k.a. wall).
It’s not clear how serious he is, although anonymous White House aides have been quoted saying they believe this will be his ultimate way out of the shutdown fight.
It’s a terrible idea. Even if it’s legal — which is unclear, at best — it would represent another unwelcome step in America’s long march toward unilateral government by the executive.
The problem isn’t declaring an emergency. There is ample authority to do that and we live under a couple of dozen little-noticed declarations of emergency that have accumulated over the decades. The issue is redirecting military funds to the border fence. That would require a strained interpretation that treats the border fence as a military matter, among other legal gymnastics.
Even if there are troops at the border currently, no one has seriously thought of it in military terms since the Mexican Revolution in the early 20th century. The border is beset not by an invading army but largely by Central American migrants who surrender to authorities at the first opportunity because they know we will usually allow them to stay in the country under our perverse immigration rules.
The proximate cause of the attempt to redirect funds under emergency powers wouldn’t be radically new circumstances at the border. There has been a simmering crisis there for a long time. It would be a failure to get Congress to appropriate the funds the president wants during a political fight and negotiations.
Legalities aside, this would be a very bad practice. It’s an offense against the spirit of our system for a president to fail to get he wants from Congress — in a dispute involving a core congressional power, spending — and then turn around and exploit a tenuous reading of the law to try to get it anyway.
We know this seems increasingly quaint, especially after President Obama’s pen-and-phone governance in his second term, but we believe presidents have an obligation to honor the role of the respective branches of government, even when it’s not in their political interest, even when there seems to be a clever workaround.
An attempt to spend unilaterally on the fence would almost certainly get tied up in the courts immediately. In the most favorable scenario for the administration, it eventually prevails in a Supreme Court loath to second-guess even dubious military-related determinations by the commander-in-chief. In the meantime, the administration will have built nothing new on the border and created another precedent for unilateral government sure to be exploited the next time a Democrat occupies the White House.